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igriculture library Illinois Easement Law 

^.^i^ rfVPY Margaret R. Grossman William M. Lopez 


"^7T^£HBRA^ n A 9 r 'cultural Law 
University of Illinois 


ty of Illinois at Urbana-Champaign 
College of Agriculture 
Cooperative Extension Service 
Circular 1 202 

Creation of Easements 3 

Rights and Limitations in Easements 9 

Scope of Easements 10 

Termination of Easements 12 

Special Easements 13 

This circular was prepared by Margaret R. Grossman, Assistant Professor of 
Agricultural Law, and William M. Lopez, Graduate Assistant in Agricultural 
Law, Department of Agricultural Economics, University of Illinois at Urbana- 
Champaign. The authors express their appreciation to N.G.P. Krausz, Professor 
of Agricultural Law Emeritus, for reviewing the manuscript. 

Urbana, Illinois July, 1982 

Issued in furtherance of Cooperative Extension Work, Acts of May 8 and June 30, 
1914, in cooperation with the U.S. Department of Agriculture. WILLIAM R. 
OSCHWALD, Director, Cooperative Extension Service, University of Illinois at 

The Illinois Cooperative Extension Service provides equal opportunities in programs 
and employment. 

5M— 4-82—53971— NR 

Ouppose you own a tract of land that is completely surrounded by 
land owned by other people. The only way you can reach the nearest 
highway is by using a right of way across your neighbor's property. 
Suppose, also, that the local utility company uses part of your land for a 
utility line right of way. Each of these situations involves a legal concept 
referred to as an easement. 

An easement is a property right that allows a person or persons to use 
part of someone else's land for a specific purpose. The private right of way 
(which permits one person to use another's land for access) and the public 
utility easement mentioned above are common examples. The purpose of 
this circular is to explain the ways in which easements are created and the 
legal rights of individuals affected by easements. This circular is not in- 
tended to be a substitute for legal counsel. If you encounter problems 
concerning easements, you should seek the advice of an attorney. 

So you can discuss easement matters more intelligently with your 
attorney and others, you should become familiar with some terms com- 
monly used in connection with easement law. Land that is benefitted by an 
easement is termed the dominant estate. For example, if a landowner 
whose property is otherwise inaccessible has an easement for a right of 
way across another person's land, the easement owner's property is the 
dominant estate. The land burdened by an easement is referred to as the 
servient estate. In this example the tract of land that the easement owner 
crosses is the servient estate. 

Easements of this type benefit one parcel of land and burden another. 
They run with the land; that is, when the dominant land is transferred, 
the easement is also transferred to the new owner. In contrast, some ease- 
ments burden land but do not benefit other land. Pipeline or power line 
easements are examples. These easements, having no dominant estates, 
usually provide a personal or corporate benefit. 

Creation of Easements 

There are three kinds of easements: express easements, implied easements, 
and those created by prescription. This section explains how each kind of 
easement is created. 

Express Easements 

An express easement is created by an agreement between parties. A 
person who wants an easement on someone else's land can negotiate to 
purchase an express easement. If the landowners reach an agreement, the 

easement should be described in a deed and recorded with the county 
recorder of deeds, just as if the agreement involved the sale of land. This 
type of easement is sometimes called an express easement by grant. 

A person who is selling land can reserve an easement in the land being 
sold. The reserved easement should be described in the deed, which will be 
recorded with the county recorder of deeds. This type of easement is some- 
times called an express easement by reservation. 

When negotiating for the purchase or reservation of an express ease- 
ment, the parties should clearly understand the rights and limitations of 
the easement. They should determine its exact course, define its physical 
dimensions, and specify its duration. In addition, the parties should agree 
on the intended uses of the easement. For example, if the easement is a 
private right of way over the land of a neighbor, the parties should decide 
whether the owner of the easement may use the right of way for farm 
machinery or only for an automobile. 

When the easement is clearly defined, the chances of a dispute are small. 
If a dispute does arise and the parties cannot agree, they may have to go to 
court to resolve the problem. The court will attempt to carry out the inten- 
tion of the parties who created the easement. If that intention is not clear, 
the court will have to decide what the parties intended. The best way to 
make sure that the easement agreement will be carried out without dispute 
is to define the easement carefully at the outset. A landowner involved in 
selling or purchasing an easement should seek an attorney's advice. 

Implied Easements 

There are two kinds of implied easements. One is the easement implied 
from prior use, which is sometimes called an easement implied from 
reasonable necessity. The other is the easement implied from necessity, 
sometimes referred to as an easement implied from absolute necessity. 

Prior Use. Three requirements must be met before an easement may 
be implied from prior use. First, a prior owner of the land must have 
divided it into two or more parcels. The implied easement is created, if at 
all, at the time this division takes place. Second, before the division, the 
original owner must have used part of the land as an easement would be 
used. (One does not have an easement in one's own land.) That use must 
have been obvious and continuous, indicating that the owner intended it 
to be permanent. Third, the easement must be reasonable and highly con- 
venient for the beneficial use of the dominant land. The easement need not 
be absolutely necessary for the use of the dominant land before it can be 
implied from prior use. 

Easement Implied From Prior Use 

Division of Property 


Public Highway 

Assume, for example, that a farmer owned a large tract of land. For 
many years, the farmer lived in a house located on one-half of the property 
and used a private road crossing the other half to reach a public highway. 
Of course, the farmer did not need an easement to cross his or her own 
land, but that use of the land is like the right granted by an easement. The 
farmer divided the land into two tracts and transferred ownership. The 
person who bought the tract with the house had an implied easement to 
use the private road across the other tract in the same way that the farmer 
had used it, even though the parties made no express grant or reservation 
of the easement. (See the illustration above.) 

The principle on which implied easements are based is that, unless the 
parties provide otherwise, a conveyance of land includes all of the benefits 
and burdens existing at the time of sale. In the example above, the ease- 
ment is a benefit for one owner and a burden for the other that each 
receives with the purchase of the land. Implied easements are not granted 
in all cases like the one described here, however. If there is a reasonable 
alternative to the easement, then it will not be granted. 

Once an implied easement is created, it continues indefinitely even if it 
is not used. It may, however, be lost by abandonment, a subject that is 
discussed in a later section of this circular. 

Necessity. The easement implied from necessity (or absolute necessity) 
usually arises when a person has a tract of land that is completely sur- 
rounded by other people's land. If the landowner could not obtain a right 
of way over a neighbor's land through an express easement or an easement 
implied from prior use, the landowner's property would be landlocked. 
Because this situation would go against the public policy that favors full 
use of the land, the law permits easements implied from necessity. 

To obtain an easement implied from necessity, a landowner must prove 
that two requirements have been met: first, that a prior owner has divided 
the land and, second, that the easement is reasonably (but not strictly) 
necessary for beneficial use of the land. This type of easement requires a 
higher degree of necessity than the easement implied from prior use. 

Another significant difference between an easement implied from prior 
use and one implied from necessity is that the landowner claiming the 
easement implied from necessity need not establish prior use of the land. 
Although establishing prior use might help to indicate the necessity of the 
easement, the person claiming the easement need not show prior use once 
he or she proves that the property is landlocked. 

Like the easement implied from prior use, the easement implied from 
necessity may lie dormant without being lost, though it can be lost through 
abandonment. The easement lasts only as long as the necessity for it exists. 

An Illinois court decision illustrates the circumstances under which a 
landowner might obtain an easement implied from necessity. A creek that 
was impassable because its bridge had long ago collapsed divided a land- 
owner's property into two tracts. The owner had access to one tract, which 
bordered a public highway, but the other tract was landlocked. The owner 
sued to establish an easement across the land of her neighbor. Both parcels 
had originally been owned by one person. Because the cost of a new bridge 
over the creek was unreasonably high compared to the income from the 
property, the court granted the landowner an easement so that she could 
reach her landlocked tract. (See the illustration on page 7.) 

In some states, laws provide a means of obtaining access to landlocked 
property. These laws allow landowners to petition the proper governmental 
authority to build a road to their property. The person benefitting from the 
road pays for that benefit, and the person over whose land the road is 
built receives compensation. Illinois has no law that provides such a 
method for obtaining a private access road across another person's land to 
landlocked property. 

Easement Implied From Necessity 


Division of Property 

>ublic Highway 

In the drawing above, property A is divided into two areas (A x and A 2 ). Prop- 
erty Aj borders a public highway; property A 2 , which is landlocked, is bordered 
on the west by a creek and on the east by property B. At one time properties 
A and B formed a single tract. In order to gain access to property A 2 , the owner 
of that property obtained an easement implied from necessity across property B. 

Prescriptive Easements 

Easements sometimes arise by prescription. To acquire an easement by 
prescription, you must show long-standing use of another person's land. 
The use must have been adverse, uninterrupted for a period of 20 years 
or more, exclusive, and continuous, and it must have taken place under 
a claim of right. Once the prescriptive easement arises, the owner of the 
servient land cannot interfere with the dominant owner's use of the land. 

For a use of land to be adverse, it must occur with the knowledge and 
acquiescence of the owner, but without the owner's permission. Acquies- 
cence is passive assent or submission. Failure of the owner to protest a 

neighbor's use of a right of way might be interpreted as acquiescence. If a 
landowner gives a neighbor permission to cross the land, the neighbor's 
use of it is not adverse, and a prescriptive easement cannot arise. If the 
land is vacant, unenclosed, and unoccupied, a court may presume that the 
land was used with the permission of the owner. To obtain the easement, 
the neighbor must then prove that he or she used the land without the 
owner's permission. 

In Illinois, if the landowner objects to a neighbor's use of the land, a 
prescriptive easement cannot arise because the owner has not acquiesced 
in the use. The law is quite different in some other states, where the land- 
owner's objection, rather than acquiescence or failure to object, is re- 
quired for a prescriptive easement. 

A use of the land is considered continuous if the dominant owner has 
not stopped using it in response to the servient owner's demands and if the 
use has not been interrupted by the servient owner. An interruption would 
prevent the claimant from fulfilling the requirement that the use continue 
for 20 years. To satisfy that requirement, owners can include periods of 
prescriptive use by prior owners, as long as there were no interruptions in 
prescriptive use during those periods. 

The requirement that the use be exclusive does not mean that the ad- 
verse user must be the only person using the property. Instead, it means 
that the claimant's use cannot depend on a right granted to someone else 
to use the property. This requirement of prescription can be satisfied even 
if some other person also uses an easement (for example, a right of way), 
as long as the claimant's use is independent of that other person's right. 

A claim of right requires that the adverse user openly claim the right to 
use the land in opposition to the right of the true owner of the property. 
The actions of the claimant must indicate to others that he or she claims 
the right to use the easement. If the owner gives the claimant permission 
to use the property, the use cannot occur under a claim of right. 

A number of types of easements may arise by prescription. One of the 
more important is a private right of way across someone else's land. Illinois 
law also provides a means of building a public highway by prescription. 
The usual requirements for a prescriptive easement apply in this situation, 
but the law shortens the prescriptive period to 15 years of use by the pub- 
lic. Other easements that can be established by prescription are the right 
to flood someone else's land, an easement for drainage, and an easement 
to obstruct the natural flow of surface water. 

Illinois does provide a way for a landowner to ensure that use of the 
land by any other person or by the public will not establish a prescriptive 
easement. The owner can post a sign reading, "Right of access by per- 



mission, and subject to control of owner," at each entrance to the property 
or at intervals of not more than 200 feet along the boundary. 

A landowner who wants to prevent someone from acquiring a prescrip- 
tive easement, but who does not object if that person uses part of the land, 
might consider granting a license for that use. The license permits some- 
one to use the land without acquiring any interest in it. A license is ordi- 
narily revocable at any time, and it does not result in a prescriptive right. 
It applies only to the person who receives the license and cannot be 
assigned to any one else. A license should include specific information 
about the land involved, the uses permitted, and other terms to protect 
both parties. A landowner who wishes to permit the use of land through a 
license should seek an attorney's help in drafting the license. 

Rights and Limitations in Easements 

After an easement is established, the dominant owner has the right to use" 
part of the servient owner's land for a specific purpose. Although an ease- 
ment is a property right, it does not permit unlimited use of the servient 
owner's land. The easement owner's right is limited by the agreement be- 
tween the parties, the type of easement, past uses of the easement, and 
other factors. The limitations include the size of the dominant land to be 
benefitted, the type of activity on the dominant land for which the ease- 
ment can be used, and the means of transport used to cross the easement. 

Once the location and character of the easement are fixed, neither the 
dominant nor the servient owner may make material alterations without 
the agreement of the other. Moreover, after the uses of an easement are 
defined, the permitted uses cannot be changed without the agreement of 
the persons involved. The owner of the servient estate may prohibit a 
misuse of the easement that increases the burden on the servient estate. A 
grave misuse may result in forfeiture of the easement. 

Suppose, for example, that a landowner obtains an easement for right 
of way over a neighbor's land. The easement holder then buys another 
tract of land next to the original tract and uses the same right of way to 
reach the second tract. Because the easement was intended only to serve 
the original tract of land, the easement holder's actions could constitute 
misuse of the easement. If the misuse increased the burden on the servient 
land, the servient owner could prohibit that misuse. 

In addition to the right to stop misuse, the servient owner has the right 
to use the land for any proper purpose, so long as that use does not inter- 
fere with the easement owner's proper use of the easement. But the servient 

owner cannot obstruct the easement or interfere with its use. Each owner 
has the right to use the land in accordance with his or her interest. 

In the absence of an agreement to the contrary, the owner of the ease- 
ment has not only the right, but also the duty, to maintain and repair the 
easement. But the dominant owner cannot materially alter the easement, 
even for greater convenience, if the alteration increases the burden on the 
servient estate or interferes with its use. The servient owner is under no 
obligation to keep the easement in repair. The only duty of the servient 
owner is not to interfere with the easement. 

Scope of Easements 

The preceding section contains general comments about rights and limita- 
tions that apply equally to most kinds of easements. The following sections 
explain the scope of particular types of easements. 

Express Easements 

When an express easement has been granted or reserved, the document 
setting out the easement should also describe the permitted use of the 
servient land. The parties are bound by the agreement stated in that docu- 
ment. If its language is ambiguous and a dispute arises, a court has to 
determine and implement the intention of the parties. When the parties 
fail to specify the permitted uses or dimensions of the easement, a court 
will ordinarily limit the uses or dimensions to what is reasonable for the 
purposes of the easement. To avoid dispute and litigation, the parties to 
an easement should ensure that the conveyance or agreement clearly 
specifies the rights and limitations in the use of the easement. 

Implied Easements 

The rules for implied easements are less clear. It appears that the owner 
of an easement implied from prior use can use the land only as it was used 
before the property was divided. Because the easement is implied from the 
use prior to division and was not negotiated by the parties, this limitation 
is logical. Nevertheless, some changes in use may be permitted. The ease- 
ment holder can usually alter the use with the changing times. 

For example, even if the implied easement arose during horse-and-buggy 
days, the current user can drive a car across the easement if it is wide 
enough. But the easement holder might not be able to drive a large farm 
implement across it. An easement owner may usually grade or bridge a 


right of way. The test used to evaluate change in the use of an easement 
focuses on the burden on the servient estate. An easement holder may not 
increase the burden on the servient estate or interfere with its use without 
the permission of the servient owner. 

The issue is more complicated when the easement is implied by neces- 
sity. Because prior use is not required for an easement implied by necessity, 
the scope of the easement is difficult to define. Moreover, Illinois courts 
have had few opportunities to explore this issue. Courts in other states do 
not agree on how the question of the scope of easements implied by neces- 
sity should be resolved. In some states, the courts attempt to promote full 
use of the land, but in others they try to minimize the burden on the 
servient land. 

For example, assume that a landowner sold a tract of timberland. The 
timberland can be reached only by crossing the original owner's land, and 
the parties did not negotiate for an express easement. The new owner now 
wants to cut the timber and haul it off the tract, a project that requires the 
use of heavy machinery. If litigation arose, a court would be likely to grant 
an easement implied by necessity. It is not so clear what the court would 
decide about the physical dimensions and permissible uses of that ease- 
ment. A court promoting full use of the land would grant an easement ex- 
tensive enough for the large machinery needed in the timber operation. A 
court that is more concerned about the burden on the servient land would 
be more likely to grant an easement that permits the landlocked tract to be 
used only as it was at the time the land was divided. If no timber harvest- 
ing occurred then, the easement might be much more limited in scope. 

Two trends in Illinois cases may indicate how an Illinois court would 
decide this issue. First, the decisions indicate a reluctance to allow the 
holder of an easement to increase the burden on the servient estate. At 
the same time, however, the courts have tended to make fair decisions 
that take into account the interests of each landowner. The outcome of a 
particular case will therefore depend on the facts in that case. 

Prescriptive Easements 

The scope of a prescriptive easement depends on the extent of the 
adverse use that created it. Because acquiescence is the key to prescriptive 
easements, Illinois courts limit a prescriptive easement to that use in which 
the owner of the servient estate has acquiesced. 

Suppose, for example, that a landowner acquiesces, or fails to object, 
when a neighbor drives across the land to reach a residence. If the use 


satisfies the other requirements for prescription, then the neighbor may be 
granted a prescriptive easement. If the owner of that easement later de- 
velops a subdivision, which would substantially increase the traffic crossing 
the servient estate, a court would probably not allow use of the prescriptive 
easement for the subdivision traffic. Had the easement holder attempted to 
use the road in this manner during the 20-year period of prescription, the 
servient landowner probably would have objected and prevented creation 
of the prescriptive easement. The servient owner actually acquiesced only 
in the use that occurred during the 20-year period. 

The courts usually limit a prescriptive easement to the use that led to 
its creation ■ — the use in which the servient owner had acquiesced — to 
prevent the owner of the easement from using the land in a way that 
would greatly burden or inconvenience the servient owner. It seems likely, 
however, that the easement holder would be permitted to modernize or 
make improvements in his or her use of the land, as long as the changes 
did not increase the burden on the servient estate. 

Termination of Easements 

There are several ways to terminate an easement. Some easements termi- 
nate automatically according to the terms of the agreements that created 
them. For example, an easement created to last for a certain period will 
expire when that period ends. An easement may also terminate by an 
express agreement, which should be in writing and should be recorded. 
The dominant owner may release the easement, or the servient owner may 
purchase the easement from the dominant owner. 

Another way to terminate an easement is by merger or unity of title. 
When the same person holds title to the dominant and servient lands, the 
easement is extinguished. Unity of title extinguishes the easement because 
one cannot have an easement in one's own land. 

An easement can lie dormant; mere nonuse will not terminate it. But 
an easement may be terminated by abandonment. Nonuse of the easement, 
accompanied by circumstances showing that the dominant owner intended 
to stop using it, constitutes abandonment. For example, a farmer who con- 
structs a fence without a gate at the boundary of an easement may be 
indicating that he or she intends to abandon the easement. Whether a 
dominant owner has abandoned the easement is sometimes difficult to 

An easement can also be terminated by prescription. An adverse use of 
the easement that meets the legal requirements of a 20-year period of 


prescription will terminate the easement. For example, if a servient owner 
obstructs an easement for 20 years and satisfies the other legal requirements 
for prescription, the easement may be terminated. 

An easement implied from necessity will terminate when the necessity 
no longer exists. 

Special Easements 

Much of the explanation in preceding sections has focused on easements 
involving rights of way. This section explains briefly some other types of 
easements. Some of these special easements are covered in more detail by 
other Cooperative Extension Service circulars. 

Pipelines and Power Lines 

When a public utility wishes to obtain a right of way over private prop- 
erty, it can purchase an easement from the landowner (an express ease- 
ment) , or it may be able to acquire the easement through condemnation 
proceedings. When the utility company acquires the right of way, either 
by purchase or by condemnation, the utility company becomes the domi- 
nant owner of the easement, and the landowner becomes the servient 
owner. The rights of the utility company are superior to the rights of the 
landowner, but only insofar as necessary for the proper use of the 
utility line. The utility company may use the easement strip for all utility 
line operations, but it may not interfere unreasonably with the operations 
of the landowner. The landowner may use the right of way for all purposes 
that do not interfere with or damage the utility line. Frequently, the rights 
of the utility and those of the landowner are stated in the right-of- 
way contract. 1 


Easements for drainage can arise naturally, through common law- 
principles, or by statute. If water naturally flows off one tract of land onto 
another, the owner of the lower (servient) land must accept the drainage 
and cannot interfere with the natural flow of the water. For example, the 
servient owner cannot build a dam that backs the water onto the higher 

1 For more information on public utility easements, consult Power Lines and Pipe- 
lines: Accommodating the Agricultural Interest, Illinois Cooperative Extension Ser- 
vice Circular 1 160. 


(dominant) land. The dominant owner is permitted to alter the quantity 
and speed of the water flowing off the land, but cannot alter the natural 
course of surface water drainage. This ability to affect the quantity and 
speed of water flow appears to be limited by a requirement that the 
changes be necessary for good husbandry of the land. In addition to 
natural drainage easements, a landowner can obtain a common law ease- 
ment of drainage or of obstruction — either express, implied, or by 

Certain Illinois laws have broadened the rules of natural drainage. 
These laws provide a procedure through which a landowner can acquire 
the right to perfect drainage by extending drains across the land of others. 
The procedure must be followed strictly. Recent developments have led 
some lawyers to believe that these laws are unconstitutional. 

Illinois also has laws concerning drains constructed by mutual license 
or agreement. If drains fall within the scope of the statute, they create 
perpetual easements that burden the lands on which the drains are built. 2 

Solar Easements 

People installing solar energy systems want some assurance that new 
property developments on adjoining land will not obstruct their solar 
collectors. Illinois court decisions suggest that one property owner may not 
acquire prescriptive or implied rights to light, air, or ventilation over the 
land of another. A landowner who plans to construct a solar collector near 
a boundary line may wish to negotiate with owners of adjoining land for 
express easements for light and air. 

2 For a more comprehensive treatment of drainage law, consult Illinois Farm 
Drainage Law, Illinois Cooperative Extension Service Circular 751.